2015 (10) TMI 99 - AT - Central Excise

Waiver of pre-deposit of duty - Tobacco Packing Machines - claim of the applicant at this stage, that the machine was not in working condition, accordingly, no duty is required to be paid - Penalty u/s 11AC - Held that - On a visit to the factory of the applicant on 24-1-2012, the Visiting Officers noticed a FFS Packing Machine along with Printed Plastic Pouch Rolls of Maruti Special Khaini and Maruti Sabasit Kada Khaini of ₹ 2/- per pouch. Further, on verification, it was found that the said pouch packing machine contained some tobacco dust even though the machine was not in operation at the time of visit. The Officers also noticed in the premises adjacent to the said room, 46 bags of tobacco. - At no point of time, the applicant had informed the Department about the existence of such machine in their premises, hence, the claim of the applicant at this stage, that the machine was not in working condition, accordingly, no duty is required to be paid, cannot be out rightly accepted without analyzing the evidences on record and also the implication of the relevant Rules of the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010. In these circumstances, we are of the view that the applicant could not able to make out a prima facie case for total waiver of pre-deposit. - Partial stay granted.

Summary

Issues:
Seeking waiver of pre-deposit of duty and penalty under Central Excise Act, 1944.

Analysis:
The case involved applications for waiver of pre-deposit of duty amounting to Rs. 3.24 Crores and penalty under Section 11AC of the Central Excise Act, 1944, along with a penalty of Rs. 5.00 lakhs imposed under Rule 26 of the Central Excise Rules, 2002. The appellant's representative argued that a machine found in their factory premises was not in working condition and was used for trading purposes, thus no duty was applicable. On the other hand, the Department contended that evidence suggested the machine was used for packing tobacco products, and the appellant failed to disclose the existence of such machines. The Tribunal noted that the relevant rule did not require the machine to be in working condition for duty determination and directed the appellant to deposit Rs. 25.00 lakhs within eight weeks, considering financial hardship and the interest of Revenue. Failure to comply would result in dismissal of appeals. The Tribunal found the appellant failed to establish a prima facie case for total waiver of pre-deposit, leading to the decision for partial deposit.

In the detailed analysis, the Tribunal considered the evidence presented by both parties. The Visiting Officers observed a FFS Packing Machine with tobacco-related items in the appellant's premises, indicating potential usage for packing tobacco products. The Department argued that the appellant's failure to inform them about the machine's existence led to the duty demand under the relevant rules. The appellant claimed the machine was not in working condition and was used for trading purposes. However, the Tribunal emphasized that the duty determination rule did not necessitate the machine to be operational, and the appellant's non-disclosure was a crucial factor. The Tribunal found that the appellant's arguments did not establish a strong case for complete waiver of pre-deposit. Considering the financial situation of the appellant and the interests of Revenue, a partial deposit of Rs. 25.00 lakhs was directed, with further actions contingent on compliance within the specified timeframe. The Tribunal balanced the appellant's circumstances with the Revenue's concerns, leading to the decision for a partial deposit to proceed with the appeals.

In conclusion, the Tribunal's judgment addressed the key issue of seeking waiver of pre-deposit of duty and penalties under the Central Excise Act, 1944. The decision highlighted the importance of disclosure and compliance with relevant rules in duty determination cases. The Tribunal's direction for a partial deposit of Rs. 25.00 lakhs balanced the appellant's financial challenges with the Revenue's interests, ensuring a fair resolution while upholding legal requirements and principles.